Overview of India’s Insolvency and Bankruptcy Code


In summary

This overview contains a summary of the most significant developments in Indian insolvency and bankruptcy law since August 2020. Where possible, the legislative changes and relevant case law are discussed simultaneously to give the reader an understanding of the letter of the law and its interpretation. Some trendsetting judgments are also discussed, and a small overview of the changes brought about by the covid-19 pandemic is provided. The overview also outlines a brief summary of legislative changes in the pipeline.


Discussion points

  • Amendments to the Insolvency and Bankruptcy Code
  • Changes related to the covid-19 pandemic
  • Whether the commercial wisdom of the committee of creditors is unassailable
  • Steps taken to ensure that the corporate debtor has a clean slate
  • Changes to Indian insolvency law expected in the coming year

Referenced in this article

  • Insolvency and Bankruptcy Code 2016
  • Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v Axis Bank Limited
  • Arun Kumar Jagatramka v Jindal Steel and Power Limited
  • Committee of Creditors of Essar Steel India ltd v Satish Kumar Gupta
  • Gujrat Urja Vikas Nigam Limited v Amit Gupta
  • Jaypee Infratech Limited v Axis Bank Limited
  • Jaypee Kensington Boulevard Apartments Welfare Association v NBCC (India) Limited
  • Jet Airways (India) Limited v State Bank of India and Another
  • K Sashidhar v Indian Overseas Bank
  • Lalit Kumar Jain v Union of India
  • Manish Kumar v Union of India

Introduction

The Insolvency and Bankruptcy Code 2016 (IBC) was intended to be a transformative piece of legislation. It sought revolutionary and cultural transformation in the insolvency and bankruptcy landscape by (i) creating a comprehensive code for insolvency and bankruptcy for corporates and individuals; (ii) establishing a new architecture, comprising a committee of creditors (COC) and dedicated adjudicating authorities (AA) for insolvency resolution and liquidation; and (iii) bringing judicial discipline in the process.

Each of the three elements was intended to address the problems that affected the bankruptcy regime in India. Although the Companies Act 1956 and the Companies Act 2013 contained provisions for winding up companies, they were found to be inadequate. The Sick Industrial Companies (Special Provisions) Act 1985 (SICA), which provided an insolvency resolution framework for sick industrial undertakings, had failed to deliver. The insolvency and bankruptcy regime for individuals was based on colonial legislation that needed to be revamped to be in sync with 21st century requirements.

In this context, the IBC was groundbreaking. Besides prescribing a legislative framework for insolvency resolution and bankruptcy, it established the Insolvency and Bankruptcy Board of India (IBBI) as the regulator, which can proactively respond to the changing realities through its regulatory powers. The IBC has succeeded in establishing distinct jurisprudence for insolvency resolution. The government and the IBBI have also been proactive in clarifying and resolving issues as and when they appear through the implementation of the legislation. This explains frequent amendments to both the IBC and the various regulations issued under it; however, the fact that the IBC is not yet fully operational despite it being almost five years since its enactment raises a few red flags on its report card.

The National Companies Law Tribunal (NCLT), which existed as a forum for adjudication of disputes for companies, became the AA for corporate insolvency resolution and liquidation. Since the IBC came into force, the NCLT has become pre-eminently a forum for insolvency resolution and liquidation, with its caseload predominantly comprising insolvency cases. According to the annual report of the Ministry of Corporate Affairs for 2019–2020,[1] a total of 19,733 fresh cases were filed at various benches of the NCLT, of which 12,089 were filed under the IBC. Similarly, of the total 13,884 cases disposed of by various NCLT benches, 7,365 were under the IBC. The Ministry of Corporate Affairs has not published similar data for 2020–2021.

A large caseload, particularly at the NCLT benches in Delhi and Mumbai, has often led to delays in adjudication of disputes. While the setting-up of regional benches across various states and an increase in bench strength at the Delhi and Mumbai benches were intended to improve the pendency issues, the reality is different. At present, of the sanctioned strength of 63 members, there is a 40 per cent vacancy.[2] Further, many regional benches are not fully functional, leading to the diversion of the resources of other benches. The Supreme Court has been forced to interfere and direct the government to take prompt action in this regard.[3] Unless those structural issues are resolved, the number of pending cases under the IBC will only rise.

Enforcing judicial discipline in insolvency resolution was one of the principal objectives of the IBC. In this respect, the IBC has fared much better than its predecessor, SICA; however, many argue that its record is far from satisfactory. The IBC imposed a strict timeline of 180 days for the corporate insolvency resolution process (CIRP), which is extendable by another 90 days, at the discretion of the AA. This was further extended to 330 days through an amendment to the IBC in 2019.

According to the data released by the IBBI, the average time taken for CIRPs that resulted in resolution plans is 406 days (after excluding time permitted by AAs). Further, the CIRPs that ended up in liquidation took an average of 351 days for conclusion.[4] Many cases take much longer (Essar Steel’s CIRP took as long as 866 days to complete).[5]

The delays have resulted in eroding value for creditors, and they may arguably have contributed to larger haircuts by all stakeholders. The number of days taken for the CIRPs has also swelled owing to the disruptions caused by the covid-19 pandemic and the resultant circuit breaker measures adopted by Indian government. Further, as per the data released by the IBBI, a total of 4,376 CIRPs have commenced under the IBC up until 31 March 2021. Of those, 1,723 are ongoing.

The trend of more corporate debtors choosing liquidation instead of resolution plans continues. According to available data, of the 2,653 CIRPs closed, AAs passed orders for liquidation in 48.13 per cent of the CIRPs. The number of corporate debtors going forward with a resolution plan was a low 13.12 per cent.[6]

In most cases, the disruption of timelines is attributable to judicial intervention. The courts have been liberal in interpreting the boundaries set by the timelines, which has led to the timelines being construed as merely advisory in nature. The government and Parliament’s attempts to fix the timelines have been repeatedly thwarted by the courts. The Supreme Court, in the case of Committee of Creditors of Essar Steel India Ltd v Satish Kumar Gupta,[7] has held the newly inserted timeline of 330 days to be advisory and not mandatory, holding that the word ‘mandatorily’ is unconstitutional.

The government has largely played a constructive role in facilitating the implementation of the IBC. It has successfully aligned the banking regulator, the Reserve Bank of India (RBI), to push the banking system into using the IBC as the principal mechanism for resolving debt. This approach has predictably suffered certain setbacks owing to the covid-19 pandemic. Where challenges have been faced in IBC implementation, the government and the IBBI have stepped in to amend the legislation and the regulations. While, by and large, the amendments have made the implementation smoother, there have been instances where frequent amendments have caused confusion.

Recent legislative amendments

The IBC is perhaps the most frequently amended legislation in recent years, and some of the changes were necessary to avoid unintended consequences. In the past year, the legislative changes to the IBC have focused on the need to address issues arising from the covid-19 pandemic.

The second 2020 amendment

Like governments in many other countries, the Indian government brought about changes to mitigate the effects of the pandemic on corporations. On 5 June 2020, it promulgated the Insolvency and Bankruptcy (Amendment) Ordinance 2020 (the Suspension Ordinance).[8] The Suspension Ordinance suspended section 7 (initiation of insolvency resolution by a financial creditor), section 9 (initiation of insolvency resolution by an operational creditor) and section 10 (initiation of insolvency resolution by a corporate debtor itself) of the IBC for six months (extendable to one year) (the suspension period) in respect of any default that occurred after 25 March 2020. This Suspension Ordinance was later substituted by the Insolvency and Bankruptcy (Second Amendment) Act 2020 (the Suspension Act) by Parliament.

The Suspension Act has had its critics. Some argue that the language leaves much scope for improvement. The proviso to the newly inserted section 10A of the IBC states that no application for the initiation of the CIRP shall ever be filed in respect of a default that occurred during the period of suspension. The Suspension Act stipulates that a default occurring after 25 March 2020 cannot be used to bring about a CIRP of the corporate debtor. This may potentially result in worsening the crisis for banks and other stakeholders that may not be able to pursue the remedy under the IBC for defaults during the suspension period. The suspension period was progressively increased and finally came to an end on 25 March 2021.

Another significant consequence of the Suspension Act is that although the CIRP cannot be initiated against the corporate debtor, the insolvency resolution process under the IBC can be initiated against personal guarantors of those corporate debtors. It is difficult to think of any reason why a default arising from the extraordinary situation of the covid-19 pandemic has been excused for corporate debtors but not personal guarantors.

In addition to suspending the IBC for a period, the government has also raised the threshold of debt for initiation of the CIRP to 10 million rupees from the existing threshold of 100,000 rupees.[9] It is relevant to highlight that this change is prospective in nature[10] and, therefore, should not impact creditors’ petitions that had already been filed before 24 March 2020.

The 2021 Amendment Ordinance

On 4 April 2021, the government promulgated the Insolvency and Bankruptcy (Amendment) Ordinance 2021 (the 2021 Ordinance), which introduced the pre-packaged insolvency resolution process (PPIRP) for micro, small and medium-sized enterprises (MSMEs) as defined under the Micro, Small and Medium Enterprises Development Act 2006. This amendment was felt to be necessary to help MSMEs tide over widespread distress induced or exacerbated by the pandemic.

To initiate the PPIRP, the corporate debtor requires the approval of its members by special resolutions or three-quarters of its partners, and the approval of unrelated financial creditors representing 66 per cent of the debt (or approval of the operational creditors where there are no unrelated financial creditors).

Upon initiation of the PPIRP, a resolution professional proposed by the financial creditor representing at least 10 per cent of the debt and approved by unrelated financial creditors representing at least 66 per cent of the debt is appointed to manage the process. The corporate debtor must submit a base resolution plan for approval of the COC, which may approve the base plan if it does not impair the claims of the operational creditors. If the base resolution plan is not approved by the COC or if it impairs the claims of the operational creditors, other resolution plans may be invited to compete with the base resolution plan.

The amended IBC also provides a shorter timeline of 120 days for completion of the PPIRP. The PPIRP enables an MSME to work on a resolution plan while the corporate debtor and its management stays in possession of the company (ie, debtor-in-possession model as opposed to the creditor-in-control model for the CIRP).

Key regulatory changes

While the IBC contemplates the insolvency and bankruptcy regime for individuals, it has not been fully notified as yet. The same was notified in a limited manner with effect from 1 December 2019, insofar as it applies to personal guarantors of corporate debtors.

The notification of those provisions was challenged as being unconstitutional on the basis that there was no intelligible basis to the difference between individuals per se and individuals who had issued guarantees in respect of the debt of corporate entities. The Supreme Court of India in Lalit Kumar Jain v Union of India[11] dismissed the challenge and upheld the notification. It also held that if a resolution plan is approved in respect of a corporate debtor, it does not absolve the personal guarantor of his or her liability that arises out of a separate contract.

To give effect to the provisions, the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules 2019 and the Insolvency and Bankruptcy (Application to Adjudicating Authority for Bankruptcy Process for Personal Guarantors to Corporate Debtors) Regulations 2019 were also notified. This allowed creditors to initiate and maintain proceedings against both the corporate debtor and the guarantor of the corporate debtor in the NCLT.

Previously, in the case of Vishnu Kumar Agarwal v Piramal Enterprises Limited,[12] the National Company Law Appellate Tribunal (NCLAT) had held that if insolvency proceedings under section 7 of the IBC have been admitted against the principal borrower, then a second application by the same creditor on the same claim cannot be maintained against the corporate guarantor; however, the uncertainty created by this judgment has been clarified by the judgment in Lalit Kumar Jain. There is anticipated that there will be an increase in insolvency proceedings against personal guarantors with a view to improving recovery for banks and financial institutions.

In accordance with an amendment to the CIRP Regulations,[13] the COC is required to simultaneously vote on all resolution plans received by the insolvency resolution professional (IRP) that comply with the requirements of the CIRP Regulations and the IBC. If only one plan is received, it shall be considered approved by the COC if it receives 66 per cent of the votes. If there is more than one plan, the plan that receives 66 per cent of the votes shall be considered approved, failing which the plan that receives the highest votes shall be voted on again. This process gives the COC the ability to simultaneously examine various plans, as opposed to voting on plans individually, which may potentially lead to the rejection of all the plans. This is likely to make the process more efficient.

With a view to bringing timely conclusion to the liquidation process, the IBBI has amended the Liquidation Process Regulations 2016 to permit liquidators to assign a ‘not readily realisable asset’ to a person who is not ineligible under section 29A of the IBC through a transparent process and in consultation with the stakeholders’ committee. ‘Not readily realisable assets’ have been defined to include contingent or disputed assets, and assets underlying proceedings for undervalued, extortionate, fraudulent and preferential transactions. This amendment could potentially spur the tapping of value of disputed arbitral awards in favour of corporate debtors, particularly, by professional third-party litigation funders.

Other changes related to the pandemic

On 6 August 2020, the RBI issued a circular[14] allowing companies a one-time restructuring (OTR) of loans without classifying them as non-performing assets. This mechanism had been applicable for all commercial banks, cooperative banks, All India Financial Institutions and non-banking financial companies. The accounts that were eligible for an OTR were those that were classified as ‘standard’ and, at the same time, were not in default for more than 30 days as at 1 March 2020.

The restructured framework was to be invoked by 31 December 2020. For personal loans, it needed to be implemented within 90 days of the invocation date, and for corporate loans within 180 days of the invocation date. The invocation date was the date on which the borrower and the lender agreed to proceed on the OTR plan.

As an additional measure, the RBI constituted an expert committee to suggest ways in which the restructuring can be implemented. The committee made recommendations for sector-specific financial parameters to be considered for the OTR. The recommendations, which were broadly accepted by the RBI, were notified on 7 September 2020 by the RBI as guidelines for OTRs.[15]

Given the rise in the number of cases in 2021 in India, the RBI issued a new circular on 5 May 2021,[16] providing a new framework. The new framework allows individuals, small businesses and MSMEs whose accounts were ‘standard’ as at 31 March 2021 with exposure not exceeding 250 million rupees to seek restructuring of their debt by 30 September 2021. As part of the restructuring, the lenders are permitted to grant a moratorium on the repayment of the debt of up to two years, along with an extension of residual tenor of the loan facility by also up to two years. Resolution plans under this framework must be finalised and implemented within 90 days of the date of invocation of the process.

Trendsetting judicial developments

The COC’s control of corporate debtors and their decision-making upon commencement of the CIRP is the cornerstone of the IBC. The NCLAT’s decision in Essar Steel[17] attempted to curtail the powers of the COC by circumscribing it with considerations of equity between different classes of creditors.

The NCLAT’s decision was challenged and reversed by the Supreme Court in Committee of Creditors of Essar Steel Limited v Satish Kumar Gupta.[18] The judgment reinstated the primacy of the COC in approving the resolution plan and reinforced its position in K Sashidhar [19] that the commercial wisdom of the COC cannot be challenged by the AA except on very limited grounds set forth under the IBC. In doing so, the Court also clarified that the COC is not acting in fiduciary capacity for any class of creditors; it is merely taking a commercial decision by requisite majority. On the ‘fair and equitable’ distribution principle introduced through the 2019 amendment, the Court clarified that it does not give the AA an additional ground to reject a resolution plan as long as the interests of all classes of creditors have been looked into and taken care of.

Recognising the need to offer a clean slate to the resolution applicant, the Court allowed an IRP to record disputed claims on notional value to enable a resolution applicant to take the same into account in a resolution plan. The creditors of the disputed claims or those who fail to submit claims should not be able to reagitate their claims against a successful resolution applicant.

Finally, the Court held the 330-day timeline introduced by the 2019 amendment to be merely advisory in nature, holding that the word ‘mandatorily’ is unconstitutional.

Another trendsetting judgment was pronounced by the Supreme Court in the case of Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v Axis Bank Limited.[20] The Court was called upon to determine:

  • whether mortgages provided by Jaypee Infratech Limited (JIL) for loans by its parent company Jayprakash Associates Limited (JAL) were preferential transactions under section 43 of the IBC; and
  • whether lenders of JAL could be classified as financial creditors of JIL by virtue of a security interest created by JIL.

The Court held that the mortgages created by JIL for the benefit of JAL were preferential transactions on the basis that:

  • while there was no creditor-debtor relationship between JIL and lenders of JAL, JAL was the ultimate beneficiary of the transactions;
  • since JAL was the operational creditor of JIL, the transactions put JAL in an advantageous position, as otherwise it would have stood much lower in priority; and
  • the transaction was not in the ordinary course of business as JIL could not be said to be in the business of offering security for its parent company.

On the issue of whether lenders of JAL could claim to be financial creditors of JIL, the Court held that since JIL did not owe any sum of money to lenders of JAL, mere mortgages would not make those lenders financial creditors of JIL.

Throughout 2019, there was a string of orders in which the NCLT and the NCLAT directed resolution professionals to allow schemes of arrangement and compromise under sections 230 to 232 of the Companies Act 2013, where a liquidation order had been passed.[21] A number of promoters who were otherwise ineligible to submit a resolution plan in respect of the corporate debtors under section 29A of the IBC saw this as a back-door entry to regain control.

The lacunae were closed with the insertion of a proviso in Regulation 2B of Insolvency and Bankruptcy (Liquidation Process) Regulations, 2016, which barred persons ineligible to submit resolution plans from being party to a compromise or arrangement. The Supreme Court in Arun Kumar Jagatramka v. Jindal Steel and Power Limited[22]upheld the same. It is now settled that a person who is ineligible in terms of section 29A of the IBC cannot submit a scheme for compromise and arrangement in those cases.[23] This move is seen as levelling the playing field and ensuring that dishonest promoters are not able to take control of the companies again.

After the introduction of the IBC and the inclusion of homebuyers as financial creditors, a large number of individual homebuyers approached the NCLT against developers who failed to deliver projects or refund money. From June 2018 (when the amendment was made to the IBC to include homebuyers as financial creditors) until 30 September 2019, a total of 1,821 cases were filed under the IBC by homebuyers.[24] Admission of insolvency proceedings on an application of a single homebuyer had the effect of stalling the completion of various projects.[25]

To prevent this situation, the Insolvency and Bankruptcy Code (Amendment) Act 2020 (the First 2020 Amendment) prescribed that an insolvency application in relation to a real estate project can be initiated only by a minimum of 100 allottees or 10 per cent of the allottees in a project, whichever is less. The constitutional validity of this amendment was upheld by the Supreme Court in Manish Kumar v Union of India.[26]

The resolution of insolvency in the real estate sector remains riddled with complexities. The resolution of Jaypee Kensington Boulevard Apartments Welfare Association v NBCC (India) Limited[27] (Jaypee) (one of the 12 largest cases) came to fruition, but this also saw many twists and turns.

In Jaypee, the Supreme Court was confronted with appeals against the orders of the AA, whereby the resolution plan approved by the COC had been modified. The Supreme Court once again reiterated the supremacy of the COC and the limited scope of judicial interference by the AA in those matters.

Ultimately, the Supreme Court exercised its extraordinary powers under the Constitution to direct the two resolution applicants (NBCC and Suraksha Realty) to file afresh; however, from the perspective of real estate sector insolvencies, the Supreme Court also emphasised that an individual homebuyer or an association of homebuyers cannot maintain a challenge to the resolution plan if the homebuyers as a class have given their consent to any of the resolution plans. Since then, Suraksha Realty’s resolution plan has been approved by the COC, and it is likely that this will finally bring down the curtains on this CIRP.

The Supreme Court has also come to the aid of corporate debtors undergoing a CIRP and, in aid of maintaining their status on a going-concern basis, it has held that the termination of an agreement (eg, a power purchase agreement) solely on the ground of initiation of a CIRP is not valid[28].

In Gujrat Urja Vikas Nigam Limited v Amit Gupta, the SC analysed the law on the validity of ipso facto clauses globally and concluded that if the corporate debtor is continuing to perform its obligation (in this case, power supply) then the power purchaser could not have terminated the PPA. The first 2020 amendment had also extended the scope of the moratorium under section 14 of the IBC to provide that licences, permits, concessions, clearances, etc, issued by a government authority shall not be suspended or terminated on the ground of insolvency during the moratorium period if current dues are being paid. Furthermore, the supply of goods or services critical to maintaining the corporate debtor’s going-concern status shall not be suspended if the current dues are being paid during the moratorium period.

The provision offers flexibility to the IRP to determine what he or she considers critical to protect or preserve the value of the corporate debtor. The amendment has been necessitated to ensure that certain critical suppliers of goods and services do not compel the IRP into making payments of past dues as a priority over other creditors.

Group insolvency

The IBC contemplates insolvency of companies on a stand-alone basis. Companies, by default, even if they are part of a larger conglomerate, are viewed as separate legal entities for the purposes of initiating insolvency proceedings against them. In isolated cases, AAs have ordered the clubbing of insolvency proceedings of group companies for the purposes of hearings; however, no definite legal framework governing group insolvency exists in India.

The IBBI constituted the Working Group on Group Insolvency under the chairmanship of Mr U K Sinha to propose a legal framework within which group insolvency proceedings may be conducted in India. The Working Group submitted its report on 23 September 2019.[29]

The Working Group recommended a cautious approach in a phased manner to implementing a group insolvency regime. It stressed the enabling and voluntary nature of the framework, recommending that with the exception of communication, cooperation and information sharing (among insolvency professionals, AAs and COCs of various group companies), no other provisions should be made mandatory. In the first phase, it was suggested that provisions relating to procedural coordination alone should be implemented. Procedural coordination could be achieved through joint application by group companies before an AA, the appointment of a single IRP and a common COC, and coordination between creditors of various group companies.

Meanwhile, various branches of the NCLT took the lead in some matters in consolidating insolvency proceedings of various group companies. For example, NCLT Mumbai consolidated insolvency proceedings of various group companies of Lavasa Group in Axis Bank Limited v Lavasa Corporation Limited,[30] on the basis that the insolvency of the subsidiaries depended on the outcome of the insolvency of the parent company. Similarly, in the case of Edelweiss Asset Reconstruction Company Limited v Sachet Infrastructure Pvt Ltd,[31] insolvencies of five group companies involved in developing a common township were consolidated by the NCLAT, in the interest of homebuyers.

However, where group companies are self-sustainable and are not interlinked, courts have also denied consolidation. In the case of Videocon group companies, while NCLT Mumbai allowed consolidation of the insolvencies of 13 group entities, it disallowed the consolidation of two other group companies.[32]

Cross-border insolvency

The Report of the Working Group on Cross-Border Insolvency noted that the existing provisions in the IBC (sections 234 and 235) do not provide a comprehensive framework for cross-border insolvency matters.[33] The proposal to provide a comprehensive framework for this purpose based on the UNCITRAL Model Law on Cross-Border Insolvency 1997 has been pending for some time. It was initially believed that an amendment bill would be introduced in the winter session of Parliament in 2019.[34]

While amendments to the IBC are awaited, the NCLAT advised a framework of cooperation between the administrator appointed by a Dutch court in respect of Jet Airways (having its regional hub in Amsterdam) and the resolution professional appointed by the AA in a petition filed by a financial creditor.[35] The protocol was designed on the principles of the UNCITRAL Model Law and provides a robust framework for cross-border coordination, maintaining respect for independent jurisdictions of the Dutch court and the NCLAT. Since Jet Airways was an Indian company with its centre of main interest in India, the IBC proceedings in India were the main insolvency proceedings, and the Dutch proceedings were non-main proceedings.[36]

In the case of Videocon Industries, the AA in India permitted the inclusion of the foreign assets held through other companies to be included in the resolution process. Further, the AA also declared that the moratorium under section 14 of the IBC is applicable to those foreign assets.[37] However, in the absence of a clear framework, these matters have to be dealt with on a case-by-case basis.

Conclusion

Insofar as any legislation can have a transformative effect, the IBC has achieved that objective. Unlike its predecessor regimes, the IBC has been adopted well by the system. When compared to SICA, the IBC has also resulted in better value realisation by various stakeholders.

The government has been proactive in ensuring that problems are dealt with, and the courts have also (with the exception of some occasional stray orders) refrained from overturning the decisions of the COC. For international lenders and stakeholders, this is good news as it also points to the robustness of the IBC to meet evolving challenges.

The covid 19 pandemic and its resultant economic stress on certain businesses is likely to result in a greater number of IBC proceedings. The government will do well to fill the vacancies in NCLT in time to enable the judicial system to rise up to the occasion.


Notes

[2] National Company Law Tribunal and Appellate Tribunal Bar Association v Ministry of Corporate Affairs, 2021 SCC OnLine SC 406.

[3] ibid.

[4] Insolvency and Bankruptcy Board of India, Insolvency and Bankruptcy News, Vol. 18, January–March 2021.

[5] Aashish Aryan, ‘NCLAT opens window to let firms exit resolution process — and settle’, The Indian Express (19 July 2020).

[6] Supra note 4.

[7] 2020 219 COMP CASE 97 (SC).

[8] In Ramesh Kymal v Siemens Gamesa Renewable Power Private Limited, the SC clarified that section 10A is retrospective in so far as although it was introduced on 5 June 2020, it protects any default committed by a corporate debtor after 25 March 2020 when the nationwide lockdown in response to the covid-19 pandemic was announced.

[9] Notification F No. 20/9/2020-Insolvency dated 24 March 2020 issued by Ministry of Corporate Affairs, Government of India.

[10] Foseco India Limited v Om Boseco Rail Products Limited, CP (IB) No. 1735/ KB/2019. See also Arrowline Organic Products Private Limited v Rockwell Industries Limited, IA/341/2020 in IBA/1031/2019.

[11] 2021 SCC OnLine SC 396.

[12] 2019 SCC OnLine NCLAT 542.

[13] Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations 2020.

[14] Circular No. >DOR.No.BP.BC/4/21.04.048/2020-21 dated 6 August 2020.

[15] See Circular No. DOR.No.BP.BC/13/21.04.048/2020-21.

[16] See Circular No. RBI/2021-22/31 DOR.STR.REC.11/21.04.048/2021-22.

[17] Standard Chartered Bank v Satish Kumar Gupta, RP of Essar Steel Ltd and Others, Company Appeal (AT) (Ins) No. 242 of 2019.

[18] 2019 SCC OnLine SC 1478.

[19] K Sashidhar v Indian Overseas Bank, 2019 SCC Online SC 257.

[20] 2019 SCC OnLine SC 1775.

[21] S C Sekaran v Amit Gupta & Ors, 2019 SCC OnLine NCLAT 517.

[22] 2021 SCC OnLine SC 220.

[23] Jindal Steel & Power Limited v Arun Kumar Jagatramka, 2019 SCC OnLine NCLAT 759. See also First Global Finance Private Limited v IVRCL Limited and Another, Company Appeal (AT) (Ins) No. 918-919 of 2019.

[24] This is according to the statement made by Shri Anurag Thakur, Minister of State for Finance and Corporate Affairs in Lok Sabha. The statement is available at http://164.100.24.220/loksabhaquestions/qhindi/172/AU32.pdf (last accessed: 4 August 2021).

[25] The problem created for the real estate sector perhaps led to the decisions in Flat Buyers Association Winter Hills-77 Gurgaon v Umang Realtech Private Limited through IRP, Company Appeal (AT) (Insolvency) No. 926 of 2019. In this case, the NCLAT held that the corporate insolvency resolution process initiated by a homebuyer or a financial institution would be limited to the project concerned and not impact other developers’ projects. It observed that the ‘reverse corporate insolvency resolution process’ can be followed in the case of real infrastructure companies in the interest of the allottees and survival of the real estate companies. Clearly, such an interpretation is not in accordance with the provisions of the IBC.

[26] 2021 SCC OnLine SC 30.

[27] 2021 SCC OnLine SC 253.

[28] Gujrat Urja Vikas Nigam Limited v Amit Gupta, Civil Appeal No. 9241 or 2019.

[30] MA 3664 of 2019.

[31] 2019 SCC OnLine NCLAT 592.

[32] State Bank of India v Venugopal Dhoot, MA 1306 of 2018.

[33] Report of Insolvency Law Committee on Cross-Border Insolvency (October 2018).

[34] KR Srivats, ‘Cross-border insolvency framework-related amendments likely in Winter session’, The Hindu BusinessLine (24 September 2019).

[35] Jet Airways (India) Limited v State Bank of India and Another, 2019 SCC OnLine NCLAT 385.

[36] ibid.

[37] Venugopal Dhoot v State Bank of India, MA 2385/2019 in C.P.(IB)-02/MB/2018.

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